March 18, 2024Published Article

Todd Palmer quoted in a Law360 article, "Can EPA Shut Down State Air Plans? The Battle Isn't Over"


The D.C. Circuit reversed some U.S. Environmental Protection Agency vetoes of state air quality plans that gave power plants and other facilities a break when they exceed air emissions limits when they're starting up, shutting down or malfunctioning, but the court's decision wasn't a complete loss for the EPA and opened avenues for new litigation.

The litigation stemmed from the EPA's decision to reject, or "call," several states' Clean Air Act implementation plans for issues with the treatment of emissions during facilities' startup, shutdown and malfunction — or SSM — phases, which often cause pollution above what permits allow.

There's more to it than that, though, according to Todd Palmer, a partner at Michael Best & Friedrich LLP and co-leader of the firm's regulatory and environmental and natural resources practices.

"On some levels, I suppose it does make it easier for [the EPA] that they don't have to make this factual determination," Palmer said.

But he noted that deeper in the opinion, the court found that some of the EPA's SIP calls based on states' startup, shutdown and malfunction policies were improper because the agency failed to complete an important step in the process.

To read the full Law360 article, please click here.

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